Hiding In The Flag
Washington has more important things to do than posture about Old GloryBy Walter Isaacson
A foundering tanker spews oil off the Texas coast while Congress dithers over a bill to create rapid-response cleanup teams. Even the President admits the need for a budget-and-tax compromise, but a heralded bipartisan summit has so far failed to produce even an agreement on how large the federal deficit really is. Flagrant political scandals -- most notably, craven sellouts by lawmakers to the savings and loan industry -- raise new calls for campaign reforms, but the effort is going nowhere. The decline of the nation's schools produces gusts of rhetoric but not one serious education reform.
Suddenly, however, the President and much of Congress have found a problem they are willing -- no, eager -- to tackle, a threat apparently so dire they are scrambling to amend the Bill of Rights to stop it: the possibility that a handful of fringe showboats might desecrate the American flag. It is the paradigm of the age of escapist politics. No painful economic choices need be confronted. Considerations more complex than a sound bite can be dismissed. And it lends itself to the manipulation of what are in fact the deep and sincere values of a patriotic majority understandably repulsed by the sight of Old Glory being burned.
A year after it struck down a Texas law barring flag desecration on the ground that it violated the First Amendment's protection of free speech, the Supreme Court last week threw out a law Congress subsequently passed to circumvent that ruling. The 5-to-4 vote was the same as before: conservative Reagan appointees Antonin Scalia and Anthony Kennedy joined William Brennan, Thurgood Marshall and Harry Blackmun in ruling that even offensive forms of political expression -- in fact, especially those offensive forms -- were what the Constitution was designed to protect. "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered," Brennan wrote for the majority.
The ruling was a lifeline for Republicans who have been losing their cutting issues: military strength, anticommunist vigilance, no new taxes and opposition to abortion. What remains is the gut "values issues" that George Bush exploited in 1988. At a Rose Garden photo-op during which he received a statue of the Marines raising the flag at Iwo Jima, the President professed not to be playing politics: "Amending the Constitution to protect the flag is not a matter of partisan politics . . . It's an American issue." While implying that defending the Bill of Rights was not quite American, Bush left it to others to make the partisan connections. "That's what he's got Dole for," said one aide.
Bob Dole, the Senate's Republican leader, went right to work. Holding a small flag as he stood in front of the White House, he noted that any Democrat's opposition to the amendment "would make a good 30-second spot." In an unusual interjection in his dissenting opinion, Justice John Paul Stevens had taken a shot at such cynicism: "The integrity of the symbol has been compromised by those leaders who . . . seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends."
The eruption of the flag controversy is a glaring symptom of a distressing change in American politics over the past decade: the way that pit-bull negative ads have led to simplistic, visceral posturing by candidates at the expense of more substantive approaches to real problems. "It's a good issue to define your opponent," said Republican strategist Ed Rollins. "If your opponent is for flag burning, he's got to go through a very sophisticated explanation."
There has not, however, been a clean partisan division on Old Glory. Many Democrats voted for the federal law against flag burning. Although a convincing case can be made that a statute is more palatable than a constitutional amendment, those who favored the first but now oppose the latter will have trouble arguing that their stand is one of pure principle. Other Democrats are joining the fight for an amendment, some out of sincere conviction, others out of electoral expediency. On the other side, Gordon Humphrey, a rock-ribbed conservative from New Hampshire who is not seeking re-election, is among the Republicans who oppose the amendment. "I find it trivializing," he says. "I just don't like tampering with the Bill of Rights."
Nations as diverse as West Germany, Israel, Argentina, South Africa and the Soviet Union have laws prohibiting desecration of their flags, and in many nations that do not (such as China), it may not be wise to test the issue. Even in the U.S., as Bush noted last week, "the law books are full of restrictions on free speech." It is not permissible to yell fire falsely in a crowded theater, as Oliver Wendell Holmes pointed out, and likewise it could be illegal to ignite a flag in one. Yet according to Duke University law school professor Walter Dellinger, "the flag amendment would be the first real instance in which political expression is being suppressed because of objections to the message being communicated."
Despite the way a flag-protection amendment threatens to trivialize politics, its opponents would be making a dangerous mistake to think that the sentiments it reflects are trivial. The Republican resurgence that began in 1968 has been based on a widely shared feeling that America's social fabric is being frayed by the denigration of mainstream values by fringe groups and their apologists. Flag burning stands out as a most egregious example of civil sacrilege, and inflammatory television shots of publicity seekers like the ones who declared last Thursday "Flag Desecration Day" -- it was actually Flag Day -- understandably heighten popular resentment.
Paradoxically, the willingness to scale back First Amendment permissiveness comes when the divisions in American society seem to be at a 25-year low. In the 1960s the battle between flag wavers and flag burners represented a traumatic schism over the Vietnam War and national morality in general. Even in those incendiary times, there was never a serious effort to pass a constitutional amendment. Now the issue has become, so to speak, less burning. With the ideological battles at home in abeyance and challenges from abroad less severe, it would seem that the nation would feel more secure about the glorious discomforts that come from tolerating forms of free speech -- even when they are as offensive as the antics of flag burners or the lyrics of 2 Live Crew or the photographs of Robert Mapplethorpe.
Next year the U.S. will celebrate the bicentennial of the First Amendment and the nine others in the Bill of Rights that serve as the nation's soul. They form, in Senator George Mitchell's words of last week, the "most concise, the most eloquent, the most effective statement of individual liberty in all of human history." Not in 199 often turbulent years has it been deemed necessary to append any "yes, but" footnote. To do so now would do more to desecrate the flag than any misguided arsonist ever could. For without those liberties for which it stands, the Stars and Stripes would become little more than colors on a cloth.
Reported by Laurence I. Barrett and Nancy Traver/Washington
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